Tips from the Trenches

The Investigation was Late – Will We Be Sanctioned?

Jun 21, 2019 10:12:05 AM / by Julie Rook Gold, Esq.

Has your agency faced this situation? After receiving a formal complaint, an agency fails to conduct its investigation within the timeframes set by the EEOC’s regulations. After 180 days have passed, the complainant requests a hearing with an administrative judge and requests sanctions. Now the question is -- will sanctions be granted? What is the most effective way to defend the agency against sanctions?


When a complainant files a formal complaint, the agency must complete an investigation and produce a report of investigation within 180 days. If the complainant amends her formal complaint, the agency must complete its investigation within either 180 days of the most recent amendment or 360 days of the formal complaint, whichever occurs first. By not completing an investigation within these timeframes, the agency is not in compliance with the EEOC’s regulations.
The EEOC has issued -- or affirmed the issuance of -- sanctions for untimely investigations, including default judgment in the complainant’s favor. For an example, see Royal v. Dep’t of Veterans Affairs, 109 LRP 61435 (Sept. 25, 2009).


Whether sanctions are warranted is decided on a case-by-case basis. An administrative judge will consider:

  • The extent of the agency's non-compliance,
  • The prejudice to the complainant, and
  • The effect on the integrity of the EEO process.

Under these factors, a delay of only two weeks where the documents were preserved and the witnesses interviewed is less likely to receive sanctions than a delay of six months where witnesses have retired and documents were not properly preserved. Thus, in defending against a motion for sanctions, an agency should emphasize (if accurate) that the non-compliance was short-lived and the complainant did not suffer any prejudice. The agency should also emphasize (if appropriate) that it attempted to preserve the integrity of the EEO process by taking steps to comply with the regulations.


There are several arguments that an AJ will likely not accept from an agency. First, an AJ will not likely be persuaded that a delay in an investigation should be excused because of financial constraints. In Royal, for example, the EEOC held that it looks to “the agency’s financial resources as whole,” in such considerations.


Second, an AJ will likely not credit an argument that the agency’s EEO office suffered from backlogs or other issues that affected the processing of complaints. “The agency’s internal situation cannot be used as a defense to its failure to comply with the Commission’s regulations," the EEOC said in Lomax v. Dep’t of Veterans Affairs, 107 LRP 59732 (Oct. 2, 2007). Additionally, the EEOC has noted that agencies should have adequate EEO staffing so that employee absences will not result in significant delays in the processing of complaints. See Miguelina S. v. Dep’t of Justice, 118 LRP 41729 (Sept. 27, 2018), for a recent example of this.


Third, it is unlikely that an agency can avoid sanctions by arguing that the AJ should first issue a show cause order. In Miguelina S., the EEOC specifically held that a show cause order is not necessary where the agency receives a copy of the motion for sanctions and has an opportunity to respond.


During the past decade, the EEOC has put more pressure on agencies to comply with the timeframes to complete investigations. As such, it is possible that delayed investigations could result in the issuance of sanctions against an agency, up to default judgment. However, depending on the length of delay and the efforts the agency took to comply with the investigatory deadline, an agency may successfully defend against the issuance of sanctions, or at least receive a lesser sanction from the EEOC.

Topics: federal hr & eeo law training, sanctioned, late investigation

Julie Rook Gold, Esq.

Written by Julie Rook Gold, Esq.

is counsel and associate attorney with Gilbert Employment Law and litigates all phases of federal sector employment discrimination complaints before the Equal Employment Opportunity Commission and appeals of disciplinary actions and whistleblower retaliation claims before the Merit Systems Protection Board. These complaints and appeals include claims of disability discrimination, removals, non-selections, religious discrimination, retaliation, harassment, whistleblower retaliation, and age discrimination. Ms. Gold prepares cases for administrative hearings before the EEOC and MSPB by drafting and responding to written discovery, conducting and defending depositions, and preparing witnesses for deposition. She represents the USDA Forest Service and USDA Food Safety and Inspection Service, and complainants and appellants at administrative hearings and examines and cross-examines witnesses during these hearings. Ms. Gold prepares settlement analyses in both EEOC and MSPB cases, participates in discussions with clients concerning legal analysis and resolution, negotiates settlement terms, drafts settlement agreements, and represents clients at settlement conferences. She served as the lead attorney on a contract with the Federal Election Commission (FEC) and conducted legal sufficiency review of Final Agency Decisions issued by the FEC.

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